Opinion
110,324.
10-10-2014
STATE of Kansas, Appellee, v. Robison Jennings MICHAEL, Appellant.
Jonathan B. Phelps, of Phelps–Chartered, of Topeka, for appellant. Kelsey Fowler, legal intern, Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Jonathan B. Phelps, of Phelps–Chartered, of Topeka, for appellant.
Kelsey Fowler, legal intern, Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Robison Jennings Michael appeals his convictions for misdemeanor criminal damage to property in violation of K.S.A.2013 Supp. 21–5813 and reporting false information about a motor vehicle accident in violation of K.S.A. 8–1608 following a bench trial in Shawnee County District Court. He contends the State presented insufficient evidence to convict on either charge. The State concedes the point as to the false reporting conviction, and we accept the concession. Disputed evidence the district court credited supports the conviction for criminal damage to property, and that is enough. So we affirm the criminal damage conviction and vacate and remand with directions on the false reporting conviction.
Shortly after midnight on May 19, 2012, Michael drove by Dallas Mayer and his girlfriend. The three knew each other. But rather than offering a greeting, Michael shouted a crude and distinctly inept insult. Later, after Mayer dropped off his girlfriend, Michael reappeared. According to Mayer, he was driving home when Michael maneuvered his truck to closely shadow Mayer's car on the rural road. Mayer tried to vary his speed to lose Michael. But Michael simply matched those changes and continued to following immediately behind Mayer's car. Mayer then moved to the passing lane and back to the inside lane. As Michael followed back to the inside lane, the front bumper of his truck struck the rear of Mayer's car, causing the car to spin off the road and into a ditch.
Michael continued down the road a ways and stopped. A passenger in his truck called 911. Shawnee County Sheriff's Officer Melissa Dial was dispatched in response. According to Officer Dial, when she spoke with Michael, he said he was trying to pass the car when it pulled over into the passing lane sideswiping his truck and forcing him onto the shoulder. Officer Dial testified that Michael initially said he did not know who was driving the car. He then backtracked and told the officer Mayer was driving the car and that he and Mayer had had an unfriendly encounter earlier.
Michael told Officer Dial he might want to press charges against Mayer. Officer Dial testified that she told him the collision seemed to be accidental rather than criminal based on his description. According to Officer Dial, Michael then changed his version of the collision; he said he was behind Mayer's car when it swerved, causing damage to the front of the truck.
At trial, the State admitted as evidence photographs of the damage to the vehicles. Officer Dial testified she found fresh scratches to the front bumper of Michael's truck and paint transfer consistent with Mayer's car. Officer Dial said Mayer's car had significant damage to the rear, driver-side quarter panel. Officer Dial testified the physical evidence was inconsistent with a sideswipe of the sort Michael initially described but would fit with Mayer's description of what happened.
The three passengers who were in Michael's truck testified at trial and offered accounts that generally supported Michael's revised account of the collision given to Officer Dial. The trial evidence indicated the passengers had been drinking the evening before the collision. There was no evidence offered to suggest Michael had participated in their imbibing. Michael chose not to testify in his own defense.
The district court considered the evidence and found Mayer's version to be more credible than that offered by Michael at the time of the incident and his witnesses at trial. The district court convicted Michael of the two charges filed against him. The district court sentenced Michael to 4 months in jail on the criminal damage conviction and then placed him on a 6–month nonreporting probation. The district court fined Michael $75 on the false reporting charge. Michael has timely appealed.
In reviewing a sufficiency-of-the-evidence challenge, we construe the evidence in a light most favorable to the party prevailing below, here the State, and in support of the judgment of conviction. An appellate court will neither reweigh the evidence generally nor make credibility determinations specifically. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009) ; State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether a rational factfinder could have determined the defendant to be guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
On the criminal damage charge, the district court had a credibility contest over how the collision occurred. The district court got to see the witnesses testify and to measure the accuracy of their accounts based on what they had to say, how they said it, and their responses on cross-examination testing their respective versions of the events. That is the crucible of a trial. Appellate courts are in no position to recreate the power or the fragility of courtroom testimony from a mere transcript. See State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (“[T]he ability to observe the declarant is an important factor in determining whether he or she is being truthful.”). And they are, therefore, wisely constrained from making independent determinations of witness credibility.
The district court had ample reason to make the credibility call it did. Michael dissembled about the circumstances of the incident—he offered materially differing accounts to the investigating officer and waffled on knowing the driver of the other vehicle. Michael's friends got on board with his revisionist account. Their friendship with Michael could be taken as cutting against their credibility. See State v. Scott, 39 Kan.App.2d 49, 56, 177 P.3d 972 (2008) (“One of the methods or techniques for attacking the credibility of a witness is to show partiality....”). Their drinking the night of the collision certainly didn't enhance their powers of perception and recall. The physical evidence better supported Mayer's account. All of those aspects of the evidence support the district court's credibility determination.
To prove misdemeanor criminal damage, the State had to show that Michael “knowingly damage[ed]” Mayer's car without Mayer's consent and the “value “of the damage was less than $1,000. K.S.A.2013 Supp. 21–5813. In this context, “knowingly” required proof that Michael was aware that his conduct would have been “reasonably certain” to result in damage to Mayer's car. K.S.A.2013 Supp. 21–5202(i). Again, taking the evidence in the light favoring the judgment, the elements of the offense have been established. Michael's shadowing of Mayer evinced deliberate conduct aimed at bringing the vehicles together in a dangerous way. The evidence similarly supports the State's charge that Michael knowingly drove his truck so the front bumper would strike Mayer's car. Michael's admission to Officer Dial that he and Mayer had an unfriendly relationship circumstantially supports the required intent. So did Michael's expression of that unfriendliness when he encountered Mayer and his girlfriend shortly before the collision. The collision, of course, resulted in damage of some “value” to Mayer's car.
We, therefore, affirm Michael's conviction for criminal damage to property.
As to the false reporting conviction, the State has acknowledged the trial evidence failed to support the charge. Under K.S.A. 8–1608, persons are prohibited from falsifying information required to be given in oral or written reports of motor vehicle accidents, as set forth in that section of the code. The violation of K.S.A. 8–1608 is an unclassified misdemeanor. In turn, K.S.A. 8–1604(a) specifies the information a driver must provide with respect to a motor vehicle accident: name, address, and vehicle registration number. The driver may be required to produce a driver's license and insurance information. Although Michael arguably gave a deliberately false account of the collision to Officer Dial, that is not covered by K.S.A. 8–1604 or K.S.A. 8–1608, as the State concedes. We, therefore, vacate Michael's conviction for violating K.S.A. 8–1608. We remand to the district court to enter an order directing that Michael be reimbursed for the amount of the fine and any costs associated exclusively with that charge or directing some other appropriate disposition of the fine and costs.
Affirmed in part, vacated in part, and remanded with directions.